I reside in California and am currently listed as a defendant in a civil law suit regarding a violation of Penal Code Section 630, et seq. (Illegal Recording). The Plaintiff is seeking damages of $25,000 and is most likely going to obtain a judgement. If I were to file, can this type of debt be discharged through bankruptcy? I understand that bankruptcy is determined by other factors than just debt. I have no assets, am currently employed making about $27.5K a year. I also have approximately $6K in unsecured debt. Please advise and let me know if more information is needed.
Thank you for your question.Chapter 7 bankruptcies can discharge many civil judgments, EXCEPT those stemming from "intentional injury of others" and those arising from drunk/drugged driving events.Chapter 13 bankruptcies CAN discharge even the "intentional injury" judgment debts, but the debtor has to pay all spare money to a BK trustee for up to five years, and then whatever remains unpaid at that time gets discharged.Thank you.BAB.
I've increased the price of the question to obtain more information. I understand the distinction between Ch. 7 & Ch 13. I do however need more information on what qualifies as "intentional injury."
"Intentional Injury" is under BK law decided usually on a case-by-case basis.There are hints of a few "bright-line" rules, however.Ordinary carelessness negligence is clearly NOT IntInj.Intentional Injury is clearly satisfied for direct battery damages--hit someone in the face in a clear non-self defense attack and you get to buy ALL the dental work and the BK laws will not let you discharge that debt.A judgment in a civil case which includes punitive or exemplary damages is not only prima facie evidence of IntInj., it is also "res judicata" between the parties which only under the most arcane cases subject to any potentially-successful challenge in the BK court. The theory is that the subject was already decided during the course of a fair legal fight, so no second chance to try the case.The difficulty for most creditors is that unless there is a prior judgment involved which satisfies those requirements, the question has to be brought to the BK court for decision in an "adversary proceeding" to determine the dischargeability of the debt. That is a whole separate trial in and of itself, though there is rarely any dispute over, or need to, spend much more than a few minutes litigating liability and the amount of damages. They can be disputed by the debtor, but they are usually easy enough to prove. The big issue is whether that specific debt, or some part of it somehow, is not dischargerable.When criminal violations are involved, the determination usually includes analysis of the requisite "intent" elements of the criminal statute. The last time I researched that for a client's specific factual/debt situation, it took about a half-day of legal research starting with that state's federal circuit court of appeals decisions regarding how "intent" was defined in the underlying statute vs. "intent" for the purposes of BK court dischargeability decisions. Someone without a law degree, if careful and guided properly, could probably do that with about 12 hours of law library time, *depending* on whether it is a close case or a clear case (about two hours for a clear case).Thank you.BAB.
I apologize if you have answered my question and I am failing to understand. I know I asked for more details and I appreciate you providing them to me. In my case, I am only interested in civil proceedings, not criminal.
Usually, yes.See Albarran v. New Form, Inc. (In re Albarran), 347 B.R. 369, 384 (9th Cir.BAP 2006), rev’d on other grounds sub. nom. In re Barboza, 545 F.3d 702 (9th Cir. 2008); Star’s Edge, Inc. v. Braun (In re Braun), 327 B.R. 447, 452 (Bankr. N.D. Cal. 2005).Notice that ALL of these citations are controlling in the California federal districts, some in the whole 9th Circuit.There is still the possibility that if the *elements* of the underlying offense do not fulfil the general BK law standards for "willful injury", statutory damages under some specific statute might be excluded from the general rule. This is uncommon and would need to be decided in one of those presumed-fair fights in court. That is what adversary proceedings are for under the BK Code as amended.Thank you.BAB.
Twelve years experience in all aspects of debtor & creditor BK.
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